DPP v Brennan [2019] VCC 1776 (31 October 2019)

Last Updated: 1 May 2020

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT GEELONG

CRIMINAL JURISDICTION

CR 19-01447

DIRECTOR OF PUBLIC PROSECUTIONS
v
ZACH BRENNAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	30 October 2019
DATE OF SENTENCE:	30 October 2019
CASE MAY BE CITED AS:	DPP v Brennan
MEDIUM NEUTRAL CITATION:	[2019] VCC 1776

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	Office of Public Prosecution
For the Accused	Ms S. Poulter	Dribbin & Brown

HIS HONOUR:

1. Cornershops and general stores were once the mainstay of small communities and little townships, or suburbs in larger cities. Modern life has, in many places, moved past such valuable institutions. But for some communities, the local small supermarket still functions as an important part of the fabric of the district. It is an important hub, the small but much-loved family supermarket.
2. The Vallis IGA in Vines Road, Hamlyn Heights, was such a place. It has been owned and operated by the same family for over 40 years. The original owners and operators, the parents of the current operator, are in their 80s. What they and the offspring and the loyal staff did for the community over many years, and what they and the community have lost, is something I will elaborate upon further in a moment.
3. But it was in the early hours of 4 March 2019 that you were seen on CCTV footage in Vines Road. You walked to the rear of the supermarket building where there was a large skip holding a good deal of cardboard. Using a cigarette lighter, you set the cardboard alight. The fire spread quickly to the IGA buildings, with its wooden first floor balcony above where the skip was in the carpark.
4. You left the fire and went to a number of other shops and turned off the water at the meter. You also turned some gas supplies off at the meter.

   The fire engulfed and destroyed the IGA and all its contents.

5. The building was, in effect, from 111-119 Vines Road in three titles.

   The operators of the IGA owned 115 and 117-119. The operator leased the building at 111-113 from a now-elderly couple and their now-widowed elderly sister. They have - that is, those now-elderly people - have owned 111-113 Vines Road for over 40 years. As noted, the operator of the IGA has owned and operated the business with his parents before him for also over 40 years.

6. Police examined the CCTV footage and you were identified and arrested the next morning in the centre of Geelong. In an interview with the police, initially you denied being anywhere near the IGA building. Once you were shown CCTV still images and questioned again, you said the following:

'This is my chance. Yeah, I did it. You know why? Because if I didn't do it, I would've killed Ray and Jackie, and I have told them that.'

7. Jackie is your mother and Ray was her partner at the time. I will return back to this matter shortly.
8. Following your arrest, you were remanded in custody and have remained there since, now 239 days. You have pleaded to arson on the basis that you knew or believed that your conduct in setting the skip bin alight - that is, the cardboard within the bin - would more likely than not result in the destruction or damage of the IGA building. As it turned out, it resulted in the utter destruction of it.

   The building had to be demolished.

9. The financial loss to the operator of the IGA has been enormous. It has been calculated by reference to relevant insurance assessments and payouts.

   The figures do not take into account uninsured property or if there is underinsured property. Nor, of course, does it account for the emotional burdens and losses - which, as I said, I will turn to shortly.

10. The financial loss has been significant, estimated at $4.245 million for the owner of 115 and 117-119; that is, the operator of the IGA. The owners of the building at 111-113 - their loss has been estimated by their insurers at $800,000.

    Thus, the extent of the damage was over $5m.

11. Although the extent of the damage is highly relevant in sentencing for arson, it is not the determinative factor of any just and appropriate sentence. There are other factors. One of those is the impact of your crime on the victims.

    As to the overall impact on the victims, the victim impact statements that were tendered were compelling.

12. I will start with the victim impact statement of the managing director of the Vallis IGA, and he is the spokesman for the victim's family. He makes clear that it has been over 40 years that his parents have owned the supermarket, and it was a huge part of his life. He says to see his parents watching 40 years of hard work burn down on the blocked-off street that night was a feeling that will not go away.
13. He says about himself that he is physically not the same. He has lost weight. He finds that stress has caused him to grind his teeth, and he has never been as stressed as this before. He has had to deal with confusion and frustration that arises from insurance claims, assessors, solicitors, and brokers. It has taken its toll.
14. He has had to deal with a whole family who are partners. He has had to provide answers to loyal staff. He says:

'Great people have lost their jobs. Thirty-five members became unemployed, which was the hardest group meeting I've ever had.'

15. He gives examples of people who have just become parents, or are just about to retire, and the great impact on them. He had to make difficult decisions.

    As he says, and rightly so, it was not his fault. It was solely yours, Mr Brennan. But nonetheless, he still feels guilt - guilt he should not have to feel.

16. Generously, he thinks of the customers. In particular one group, the elderly, who came to his store - as he said, not necessarily to buy anything, but to get out of the house, to walk, to say hello, to be active, to interact. That, as I said, shops of this kind are part of the fabric of the community, and a positive one at that. He said he and the staff had a wonderful feeling to provide an outlet for these customers. He wonders what they are going to do now.
17. He speaks of others who now have to go a good distance to get their groceries instead of a quick trip to the local shop. He describes this as a snapshot of the effect on himself, his family, and the community.
18. There is such a ripple socially, emotionally and financially. With his only family and himself, they have taken pay cuts. They just do not know when they are going to get back to trading, and at what expense. Thirty-five members out of work, thousands of locals to travel further to get groceries. He says the other shops in Vines Road have recorded a drop in sales, some significant.

    The donations that the shop made to local schools, the sponsorships of sporting clubs, and the donations for raffles, all have been affected.

19. He asks himself rhetorically, 'How has it impacted?' And he answers, 'I don't think I could ever answer this correctly.' He says he writes this without anger. A great generosity. He writes 'without anger, just sadness.'
20. The daughter of an 87-year-old widow who owned 111-113. She writes that she has lost her income, and at her age, and with growing dementia, on her own as her husband has passed away, this has created incredible stress.

    It has affected her health, with high blood pressure and loss of appetite.

    She does not know how she will overcome what confronts her. The financial aspects of it - she cannot borrow money, she relied on this income to support her. There is great hardship and uncertainty.

21. Likewise, the daughter of the other owners of 111-113 speaks on behalf of the family. When they heard of the fire, they were anxious and stressed, but it did not prepare them for what they found. It was complete disbelief when they saw the premises destroyed.
22. Both families who owned it worked hard for their investment and took pride in their achievement. It was all destroyed. That brought grief and sadness.

    It was to be their income and security in retirement; that is now lost.

23. She writes of her parents that they worked extremely hard for everything that they achieved. Nothing was handed to them. They bought and paid off this building by doing shift work, working overtime, at the sacrifice of holidays and family time, and they worked hard when they were young so they could have security for their retirement years, and that is what this building represented.
24. But that is now not the case. Quite the opposite. What they are left with is upset, anxiety, anger, sadness and devastation. Going through the whole process of insurance is distressing and uncertain.
25. I emphasise, Mr Brennan, that I have not been overwhelmed by the impact of your crimes on the victims. I have dealt with them in a balanced judicial way. But it is part of my requirement under the Sentencing Act to look at the impact of your crime on the victims.
26. As to the gravity of your offending, arson is a frightening and dangerous crime. It causes devastating loss, financial and emotional, as important things to an owner are lost most often forever. The scenes encountered after a fire are matters that victims cannot unsee. It is hard to cope with, as it was on this occasion.
27. As is the case here, many have been indirectly affected as this was an important part of the local community. The shop employed many loyal workers who were put out of a job overnight. It was, as made clear by the operator, a shop that did a lot for its community, the elderly, and that has all gone.
28. I will not try and restate what the victims have said. They capture it much better than I can. But this was a serious example of arson causing devastating losses.
29. But I must factor into the equation that your intent was not to, and you did not set out to, destroy the IGA - but you knew or believed by setting the fire in the skip that you would likely destroy or damage the IGA building. This was not an arson for revenge or money or any other malevolent purpose.
30. It was impulsive, and there was no planning such as the use of accelerant.

    It was not evident to you, and it seems actually to be the case, that there were any particular risks created to others. It is just the inherent risk of arson that operates in this case.

31. You turned off taps in surrounding shops and gas meters. This was bizarre conduct. It was said by the prosecution that the only inference I could draw was that you were endeavouring to have some impact on the fire that you had set in the sense of preventing it being put out. Your counsel argued that this was not the only inference that could be drawn; this was just bizarre behaviour that was a significant distance away, in some instances, from the fire, and included turning gas off. I would have to make a finding beyond reasonable doubt for it to be an aggravating feature.
32. In the end, I conclude that this was bizarre behaviour evident of your unusual personality, but it does not operate to aggravate the arson itself.
33. There can be worse examples of arson, but this was not at the lower end of the spectrum. Far from it. It was a grave example of an always serious crime.
34. It is hard to get a precise handle on your moral culpability. You lacked insight into what you had done. You considered yourself worse off than any of the victims. That is how you explained it to the psychologist. I will speak more of this shortly. Your explanations in the record of interview were bizarre and disconnected. I will mention a few of those shortly.
35. You have longstanding personality or mental health problems, but these make you more a risk into the future, rather than operating as mitigation by reducing your moral culpability. The expert report that was tendered on your plea does not consider that you have any impaired mental functioning that operated to mitigate your crimes, or continue to operate in a way that would mitigate penalty by the fact that prison would be more onerous for you. Indeed, the regularity of prison is set to suit your personality.
36. Your counsel did not suggest that there was any impaired mental functioning that reduced your moral culpability. As to your personal circumstances, they are difficult set out accurately as your instructions or information you provided to the expert psychologist was seen to be unreliable.
37. You are now 30. You were born in Goulburn. You allege that your mother was raped by her father, and you were the product of that incestual rape. There is some enduring concerns for you, psychological concerns, as a consequence of that. Whatever the position be, it is certainly the case that it impacts upon your mental health and personality.
38. You were raised by your grandmother, but it is unclear what the precise family constellation was. Your mother was troubled by alcohol abuse and addiction. You reported that you had developed problems arising from foetal alcohol syndrome, and on the balance of probabilities, I operate on that basis.
39. I accept that your background and development were disadvantaged, and you had experiences of all manner of abuse at the hands of relatives. These are still relevant matters in the overall synthesis - supplying the decision of the High Court in Bugmy.
40. You had some difficulties early at school, but ultimately, did well enough to reach Year 12 or at least Year 11. Your career after school was in abattoirs. You worked in that industry as a meat worker in New South Wales, Queensland, Tasmania and Victoria over 10 years or so. Your work history is to your credit.
41. But it seems that in 2018, you were intending to move to Colac to work and decided to visit your mother who was by then in Geelong. It became an extended visit, but one fraught with emotional ups and downs. In your record of interview, you referred to the problems you were having with your mother and her partner.
42. As I have pointed out, you said, having denied that you were involved in this fire, the first time that you made it clear that you were involved, you said to the police, in answer to the question, 'Tell us what you did and why you did it.

    This is your opportunity, essentially.' And you said:

'If it is my chance, yeah, I did it. You know why? Because if I didn't do it, I would've killed Ray and Jackie, and I told them.'

43. You said later in the interview:

'My mum has been assaulted by Ray and there's nothing I could do. They deserved that shit. He bashes my mum and rapes her while I can hear it, and yet the whole house is locked and I can't get it. She yells my name and I can't do anything about it, then she threatens to kill me because

I'm not doing anything. I've lost it. I've tried to leave Dean's because

I don't feel safe there, and I've gone for a walk, and the only thing I had on me is the fuckin' lighter and fucking drink.'

44. You then went on again in the interview to say:

'The only explanation I can give is due to such sustained stress and the drama that's going on in my life, mental health issue and unsupportive behaviour of people around me. I've gone into a mental state of uncomparison that I've never done before.'

45. You give references to other matters, you say, about police officers on the train station. And you go on:

'I've been going through it for a year now with the same, and it hasn't gone anywhere. I'm homeless and on a CCO. I'm getting blamed for everything, but I shouldn't be.'

46. As pointed out in one of those answers, you had while in Geelong come before the Magistrates' Court, first in October 2018 when you were fined, but more seriously on 2 January 2019, you were sentenced for the possession of child abuse material. You had been on remand for 61 days, and you came up for sentence on 2 January 2019. The magistrate imposed a gaol term of 61 days and an 18-month community corrections order.
47. I was told you were complying with that order for the two months before you committed this arson, but the fact that you were just two months out of custody and on a community corrections order are serious and concerning matters impacting on your prospects of rehabilitation and the need for deterrence to you.
48. Your other prior convictions interstate range from 2011 to 2017, almost solely in Goulburn, but also one in Tasmania. The last appearance in Goulburn was for damage to a property. However, it was punished by a fine of $800 and in some indication of the seriousness of the damage, or the lack of seriousness, there was an order for $200 compensation. It was not an arson or a significant crime.
49. The other prior matters are for driving, drugs, and weapon possession.
50. As to alcohol and drugs, you have from time to time abused alcohol, drinking a bottle of spirits a day. You had some counselling, you said, in Queensland. You said that your use of alcohol increased when you went back with your mother. You have used cannabis for many years up until the night before the arson. You took to using ice in more recent times, smoking and injecting that dreadful drug to 'get away from issues.'
51. You have had some long-term relationships and have two children. In the latter years, you have not seen them. You want a relationship with them when you are released.
52. You told the psychologist you have had depression and took medication for that. You are still medicated in prison for depression. You have seen mental health clinicians over the years following suicide attempts to deal with your depression and anger. You reported that one practitioner said that you had a personality disorder, but you disagreed firmly with that diagnosis.
53. The psychiatrist who examined you wrote the following, under the heading of 'Mental state': that you are a 'disorganised historian', often becoming tangential on matters of interest to you. Your speech was normal in rate and unpressured, but you had limited insight and judgment at times, and displayed concrete reasoning. The write was unable to estimate the extent to which your record was truthful, as there was some unsophisticated malingering.
54. Doing the best that these psychologists do, he wrote the following: that your impulsiveness difficulties relating actions to consequences, learning difficulties and social relationship issues, and a somewhat slow cognitive process, are at least partially a result of foetal alcohol syndrome. It is evident that you have little to no support with learning to manage your condition and creating self-regulation options.
55. As such, you have developed a number of external coping strategies, such as substance abuse and aggression to cope with distress. It is likely that this, and this drug use before the index offence, influenced your actions.
56. Your counsel summarised your personality, or mental health problems, as involving an inability to express frustrations and an incapacity to deal with the time that you were with your mother and her partner. Your emotions were unstable during this time. You became angry, and in the end, acted as you did in response - by lighting the fire that you did on 4 March.
57. Your counsel contended that these problems and the link to your development and upbringing ought not to be ignored, but she did acknowledge that they seemed entrenched, and as such, these matters and your lack of insight meant that protection of the community also had some importance. In this regard, the psychiatrist concluded:

'It is the writer's view that until he receives both consistent psychological and treatment support for a mixture of developmental psychological issues and substance use, his risk of reoffending in some manner, not necessarily the same, is high.'

58. It seems a sensible conclusion.
59. Your plea of guilty is important, and will see a lower sentence imposed.

    Your lack of insight and empathy to the psychologist was said by your counsel to have altered in the sense that you approached instructing her by showing some sympathy to all that had suffered, and by taking responsibility for it.

    That is some progress.

60. Your counsel conceded the only outcome was imprisonment; an unhappy one, but the only outcome, given the seriousness of this offending. It was a proper concession. But I still take into account the nature of the offending and your deprived circumstances to moderate the sentence that I impose.
61. Your counsel contended that a sentence that was in line with the average sentence statistics should be where the sentence is fixed, or thereabouts.

    Just on that topic, the Court of Appeal, in the matter of Beevers, said the following in dealing with an arson of a historic domestic home, in respect of domestic homes:

'We note, however, that sentences of imprisonment of two, three or four years' imprisonment for arson perpetrated against houses (depending, of course, upon the individual circumstances of each case) seem to accord with current sentencing practices.'

62. However, as the High Court has said in Dalgleish, current sentencing practices do not dominate considerations. They are just one of the factors.
63. The prosecution contended that this was not a low or mid-range example of the offence of arson, but rather a very serious example of arson - warranting, when taken in turn with the risk that you present for the future, a significant gaol term.
64. Denunciation, deterrence and protection of the community are the important sentencing purposes. Your rehabilitation is not overlooked, but your prospects are only reasonable, if not more guarded than that. However, I do note you have done much within the prison to better yourself, and you have a plan on release to study in the work safety field and establish a career in that profession.
65. Your rehabilitation is a matter of weight, but the most important purposes are denunciation and deterrence, and protection of the community. In respect of denunciation, the crime of arson creates fear, and for the victims, despair.
66. You have damaged more than the bricks and mortar or spoiled supermarket items. The owners and employees and the customers, especially the regular elderly customers - indeed, the whole community in that area, have suffered emotional loss, and in the case of the elderly victims who owned the properties, trauma, as they contemplate an uncertain future in their remaining years.
67. These words and others that I have expressed of denunciation are important, but there must be a practical dimension to denunciation in the form of years of imprisonment.
68. There must be deterrence to others who may be minded to take frustrations with the world, or their lot, by lighting fires. Any attempt to light fires must know stern punishment awaits. You must be deterred yourself from resorting to crime if frustrated or angry. The community must be protected from you, principally, in the medium term by incapacitation. But also, I hope, by ensuring that you are supervised on your release.
69. However, when and if you are granted parole is for others, not me. You must take up counselling, Mr Brennan, and psychological help on release to lower your risk of repeat offending of any kind.
70. The sentence that I impose will not replace what was lost. The length of the sentence is not to be equated with the loss felt. There are many other aspects about the offence, and you as the offender, that I must and have factored into the equation.
71. I have considered your case by applying individualised sentencing. I have looked at another case, that of Finn, where there was the burning of a warehouse in Maffra with approximately over $1,000,000 to $1,500,000 worth of damage and 15 employees put out of work, and the sentence was imposed on a man that was different in many ways to you.
72. But doing the best I can, I impose the following penalty. Can you stand up, please?
73. For committing the crime of arson, you are sentenced to five years and three months' imprisonment.
74. And I fix a minimum non-parole period of three years and six months.
75. You have already served 239 days in custody. This figure having been reckoned, I declare it as part of the sentence that I have just imposed.
76. Had you pleaded not guilty to these offences and been found guilty of them,

    I would have imposed a penalty of seven years with a minimum of five years and six months.

77. The other orders that are sought are the forfeiture of a cigarette lighter? Is that right?
78. MR McKENRY: Yes.
79. HIS HONOUR: Is there a 464? All right.
80. MR McKENRY: Automatic retention, Your Honour.
81. HIS HONOUR: No. I will sign an order that will dispose of the cigarette lighter. Is there anything else required?
82. COUNSEL: No, Your Honour.
83. HIS HONOUR: Thank you.
84. MS POULTER: As Your Honour pleases.
85. HIS HONOUR: Mr Brennan, you will be taken down to the prison by the prison folk now. Thank you.
86. Ms Poulter, thank you very much for your assistance. Just bear with us. There is a media request just sort of zooming in across the cloud as we speak.

    I sometimes need help with that.

87. MS POULTER: Yes.
88. (At this stage the court proceeded with another matter.)
89. HIS HONOUR: I will just stand down this matter, Ms Poulter. I will get that -

    I will just have a look at it as I am walking.

90. (Short adjournment.)
91. HIS HONOUR: Ms Poulter and Mr McKenry, the request from the media is from the Geelong Advertiser. The journalist is here. They seek the summary of prosecution opening which was read into open court, so there is no problem there. They seek the victim impact statements that were read into court by named victims. I do not name any of the victims, and it is a matter for others as to whether they do that.
92. So Mr McKenry, the victim impact statements sought are from Mr Valenti, the gentleman who owned the place, and he authorised you to read it out. That is right?
93. MR McKENRY: Yes, he did, yes.
94. HIS HONOUR: All right. The Nina Staffis - she also authorised you to read it out, so ‑ ‑ ‑
95. MR McKENRY: And I might have misspoken in regard to Mr Valenti where he was silent as to whether or not he wanted me to read it out. And my position is, in the circumstances, it ought be read out.
96. HIS HONOUR: That may be so, but that is a different thing to then have it quoted in the newspaper.
97. MR McKENRY: That's correct. I've attempted to have my - Nathan to literally just send a message to enquire as to each of the makers as to whether or not they're comfortable with that release. It's only been two minutes, Your Honour, so I don't have that answer.
98. HIS HONOUR: All right, thank you. I will authorise the summary of prosecution opening. The portal will make available all my comments, including those from the small portions of the victim impact statements, or larger. If they say they want them read in court, then there is no problem. If they say nothing about it, it is something we just need to check. Because if they did not tick a box saying, 'We want it read in court', and then they find that it is in the newspaper, there may be some concerns.
99. VOICE (from body of court): That's understandable, Your Honour.
100. HIS HONOUR: Thank you very much.
101. MR McKENRY: As Your Honour pleases.
102. HIS HONOUR: Thank you, Ms Poulter. You have got nothing to say?
103. MS POULTER: Yes, Your Honour. I don't have any submissions.
104. HIS HONOUR: You are free to go. Thank you.
105. MS POULTER: Thank you.

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